Marriage of Soehlke v. Soehlke
398 S.W.3d 10
Mo.2013Background
- Dissolution of marriage in 2005 awarded joint legal and physical custody with Mother's Kansas residence as the child’s primary residence.
- 2008 judgment replaced week-to-week custody with a Kansas primary residence and Father’s periods with the child during school year and summer.
- May 2009/July 2010 motion to modify alleged Mother’s failures to communicate and other conduct affecting the child’s best interests.
- September 14, 2011 judgment again mirrored the 2008 plan, designating Father’s Missouri residence as primary and outlining custody periods for the child.
- October 7, 2011 nunc pro tunc modification added language to require child primarily with Father except during Mother-designated periods, prompting Mother’s objections and appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to appoint guardian ad litem | Mother asserts GAL required under 452.423.2. | Father contends no abuse/neglect triggered 452.423.2; GAL not mandatory. | No error; no abuse/neglect alleged; guardianship not required; no prejudice shown. |
| Best interest factors 452.375.2(5), (6), (8) | Mother contends court failed to consider factors affecting child’s adjustment, health, and wishes. | Father argues court properly weighed evidence; no requirement to find on absent evidence. | Judgment adequately addressed relevant factors; where evidence was lacking, court noted void and no weight given. |
| Nunc pro tunc clarification under Rule 74.06(a) | Mother argues the 10/7/2011 change was unauthorized and should be struck. | Father contends it corrected a clerical error under Rule 74.06(a). | Rule 74.06(a) not applicable; however Rule 75.01 permitted clarification within 30-day window for good cause; modification affirmed. |
Key Cases Cited
- Speer v. Colon, 155 S.W.3d 60 (Mo. banc 2005) (best-interest findings required in custody modifications)
- Rombach v. Rombach, 867 S.W.2d 500 (Mo. banc 1993) (guardian ad litem where abuse/neglect alleged)
- Pirtle v. Cook, 956 S.W.2d 235 (Mo. banc 1997) (nunc pro tunc limitations; clerical corrections only)
- Wigginton v. Rule, 205 S.W. 168 (Mo. 1918) (invited error doctrine understanding)
- Hightower v. Myers, 304 S.W.3d 727 (Mo. banc 2010) (evidence need not address every factor when none is presented)